RYBICKI v. STATE BD. OF ELEC. OF STATE OF ILL.

January 12, 1982

CHESTER J. RYBICKI, ET AL., PLAINTIFFS,v.THE STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS. MIGUEL DELVALLE, ET AL., PLAINTIFFS, V. THE STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS. BRUCE CROSBY, ET AL., PLAINTIFFS, V. THE STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS.

Before Cudahy, Circuit Judge, and Grady and Bua, District
Judges.
Rybicki I

The opinion of the court was delivered by: Cudahy, Circuit Judge.

MEMORANDUM OPINION

In these consolidated reapportionment cases, three groups of
plaintiffs challenge the validity, under the federal and
Illinois constitutions and related law, of Illinois' 1981
state legislative redistricting plan (the "Commission Plan").
For the reasons set forth in this opinion, we reject the
Rybicki plaintiffs' allegations, on behalf of Republican and
suburban interests, of noncompactness, partisan unfairness and
impermissible fracturing of counties (and other political
subdivisions) and suburban communities. We accept, in part, the
Crosby plaintiffs' claim, on behalf of black voters, that the
Commission Plan unconstitutionally dilutes black voting
strength. As a remedy for this unconstitutional dilution of the
black vote, we adopt certain modifications to the Commission
Plan, identified as Court Exhibits 1A, 2A, 7D and 7E (and
related documents). We also approve as fair, adequate and
reasonable a Settlement Agreement reached between the DelValle
plaintiffs, on behalf of Hispanic voters, and the Commission
defendants, and therefore approve certain further modifications
to the Commission Plan, as stipulated in the Settlement
Agreement.

Defendants in all three cases are James Edgar, the Secretary
of State of Illinois, who is charged under Article IV, § 3 of
the 1970 Illinois Constitution, with publication of the
legislative redistricting map; the Illinois State Board of
Elections and its members who, pursuant to Ill.Rev.Stats. ch.
46, § 1A-8 (1979), are primarily responsible for the
administration and supervision of elections in Illinois; and
the Illinois Legislative Redistricting Commission (and its
Democratic members individually), which is charged pursuant to
Article IV, § 3 of the 1970 Illinois Constitution with the task
of promulgating a redistricting plan in the event that the
legislature fails to adopt such a plan.*fn3

On November 2, 1981, a three-judge court was convened
pursuant to 28 U.S.C. § 2284(a) (1976) to hear these cases and,
on November 23, all three cases were consolidated for expedited
consideration. Trial was concluded on December 7, 1981, after
the court had heard testimony from 25 witnesses and received
into evidence more than 200 exhibits.

I. Facts

A. Procedural Background of the 1981 Legislature
Redistricting in Illinois

In view of the importance of legislative history to proof of
a claim of intentional discrimination,*fn5 we set forth in
some detail the background evidence of the redistricting
efforts of both the legislature and the Commission.*fn6
During the first few months of 1981, the results of the
federal census were delivered to ranking Illinois legislative
and executive officials.*fn7 Figures in hand, the leaders of
both parties immediately engaged the services of consultants
to aid in both the development and political analysis of the
possible redistricting plans. The political data utilized by
both parties included voting results and patterns at the
census tract level for a variety of legislative and state-wide
races run from 1978 through 1980.

In the course of their preparations, the Democratic staff,
under the direction of House Minority Leader Michael Madigan,
solicited the views of all Democratic legislators. A number of
black legislators told Madigan that blacks were
underrepresented both in the legislature as a whole and in the
party caucuses. A House Select Committee on Reapportionment
also conducted public hearings to solicit the views of
citizens in general. The Committee was advised at these
hearings in Chicago of the desire of the black community for
greater representation in the legislature.

By May, 1981, Republican legislators had created a plan
which they introduced in the Illinois House. The Democrats had
also succeeded in developing a plan which they submitted to
the state Senate.*fn8 A major impediment to passage of both
plans, however, was Madigan's fear that Governor Thompson, a
Republican, would exercise his amendatory veto with respect to
any plan presented to him. Consequently, neither plan passed
and, in July, the Legislative Redistricting Commission was
formed.*fn9

Before making his appointments, Madigan circulated among
House Democrats a form requesting that they submit their
recommendations for potential Commission appointees. Madigan
stated that he had committed himself to the appointment of one
member from a racial or ethnic minority. Although most of the
black legislators recommended the appointment of Rep. Emil
Jones, currently an Assistant Minority Leader, Madigan
followed the advice of other black legislators, two of whom
are plaintiffs in this case, and appointed a former State
Representative and black community leader, Corneal A. Davis.
Apart from Davis, there was no black or Hispanic
representation on the Commission or on its staff.

The Democratic Map*fn11 for Chicago and Cook County, which
is the prototype for the map of those areas ultimately adopted
by the Commission, was drawn according to a systematic
procedure. The drafters began with the districts as they
appeared in the 1971 redistricting map.*fn12 They intended to
enlarge those districts that had lost population and shrink
those that had gained. Throughout the process, Madigan
solicited the views of all legislators, including black
legislators, concerning various aspects of the map. The map
was completed in rough form by the end of June. Although
Madigan testified that he made no attempt to hide the Cook
County map from various black legislators and community
leaders and Hispanics, only Commissioner Davis had the
opportunity to study the entire Chicago and Cook County
portions of the map at this stage or at any time prior to its
adoption as the Commission Plan on October 2, 1981.*fn13

Notwithstanding the fact that the Democrats had completed
drafting the major portions of their map, the Commission held
public hearings in Chicago on July 23, 1981, to obtain public
suggestions for redistricting. A number of witnesses,
including representatives of the black and Hispanic
communities, presented their views on redistricting at these
hearings. Several black witnesses testified that in the past
blacks had fared poorly in the redistricting process; that
percentage-wise the black population had increased in relation
to the white population in Chicago between 1970 and 1980; and
that any redistricting should accord blacks greater
representation. The Hispanics pointed out that they had no
representation in the General Assembly and urgently requested
an opportunity to secure such representation. See Plaintiffs'
Ex. 52.*fn14

Among the other witnesses who testified at the hearings were
representatives of the villages of Oak Park and Evanston, as
well as the Chicago neighborhood of Hyde Park. These
communities, which had been fractured by prior redistricting,
all requested that each be included in only one district.
Although the protestations of black witnesses produced no
changes in the draft plan, the drafters did revise the plan to
accommodate the desires of these three geographical
communities.

Pursuant to the constitutional procedure (of drawing by
lot), former Governor Samuel Shapiro, a Democrat, was then
selected to become the ninth member of the Commission on
September 2, 1981. Governor Shapiro unsuccessfully urged a
compromise between the Republican and Democratic Commission
members before he ultimately acceded to the Democratic
proposal.*fn15 On October 2 the Commission met to vote on
what had then become known as the "Shapiro Plan."*fn16 The
Republican Commissioners, now comprising an unenviable
minority of four, criticized the plan as being unduly partisan
and having a discriminatory impact on minorities in Chicago.
Plaintiffs' Ex. 39 at 39-42. The Shapiro Plan was adopted by
a vote of five to four, and it was officially filed with the
Illinois Secretary of State on October 5, 1981.

B. General Considerations

We briefly describe the more salient features of the
Commission Plan, together with an overview of the demographics
of the State of Illinois before turning in detail to the
evidence presented by the challengers and defenders of the
Plan at trial. With respect to general characteristics, the
Plan divides the State into 59 Senate districts, each of which
is in turn divided geographically into two House
districts.*fn17 The ideal population for each Senate district
is 193,533. The total deviation of the Senate districts in the
Commission Plan from this ideal is 1.59%, with an average
deviation of .29%. The ideal population for each of the 118
House districts is 96,767. The total deviation from this ideal
is 1.97%, with an average deviation of .42%.*fn18

A better understanding of the details of the Commission Plan
and its impact on the plaintiffs in this case is facilitated
by reviewing the demography of Illinois and, in particular, of
metropolitan Chicago. Evidence presented at trial indicated
that Illinois may, for reapportionment purposes, be divided
into three or four areas: (1) Chicago, (2) Cook County outside
Chicago, (3) the five counties adjacent to Cook (the "collar
counties": DuPage, Kane, Will, McHenry and Lake), and (4) the
remaining counties (i.e., the "downstate counties"). Of the
11,418,000 residents of Illinois, the 1980 census reveals that
Chicago accounts for 3,005,000 (28%), Cook County (including
Chicago) for 5,253,000 (46%), the collar counties for 1,849,000
(16%) and the downstate counties for 4,316,000 (38%). See
Defendants' Ex. 121.

Chicago and Cook County constitute, of course, the largest
urban and suburban center in Illinois. The collar counties are
generally characterized as suburban and the downstate counties
as rural. The tripartite (or quadrapartite) division of the
state also generally correlates with political affiliation:
Chicago is heavily Democratic while suburban Cook and the
collar counties are predominantly Republican, as are many of
the downstate counties.

Of the 5,253,190 residents of Cook County, 1,308,763 are
black (21.5%). Approximately 84% of the Cook County black
population resides in Chicago, where the blacks comprise
nearly 40%, of the city's total population. The black
population of Chicago is concentrated in two areas. The
largest concentration is found in the South and Southeastern
portions of Chicago, extending roughly from the city-center
"Loop" area to Chicago's southernmost boundary. This area is,
for the most part, over 85% black and it contains 792,000, or
66.2%, of the city's blacks. The area in question is commonly
referred to as the South Side and is so denominated in this
opinion. A smaller concentration of blacks exists in the West
Central portion of Chicago, centered in the Austin
neighborhood. It too is over 85% black and contains
approximately 300,000 blacks or 23%, of Chicago's black
population. This area has been frequently denominated the West
Side in this litigation and is referred to as such in this
opinion. Blacks also constitute a significant percentage of
the population in and around the southern suburban
municipalities of Harvey, Robbins and Markham. The
concentration of blacks in this area of Cook County is not as
high as on the South and West Sides, but it ranges from 35% to
over 85%. The total black population in this area — 46,000 — is
also relatively small. This southern area where blacks are
concentrated has been denominated the South Suburban area.

A substantial Hispanic*fn19 population also resides in
Illinois. The majority of Hispanics live in Chicago, where
they number 422,061, or approximately 14% of the city's
population. In general, the Hispanic population is not as
highly concentrated as the black population. The Hispanic
population is more dispersed than the black population, with
Hispanics residing in various areas throughout Chicago.
Notwithstanding this general dispersal, at least two major
Hispanic aggregations are easily identified in Chicago, one on
the Northwest Side and the other on the Southwest Side.

C. Evidence Adduced at Trial

1. The Rybicki Plaintiffs

The Rybicki plaintiffs submitted various testimonial and
documentary evidence to support their claims of suburban vote
dilution, lack of compactness of certain districts, excessive
fracturing of political subdivisions and political unfairness.

Suburban Vote Dilution. The Rybicki plaintiffs argued that,
based on changes in
population between 1970 and 1980,*fn20 the collar counties
are "entitled" to more and Chicago is "entitled" to fewer
legislative districts than were accorded to these areas under
the Commission Plan.

Under the 1971 redistricting plan, Chicago voters
constituted part of the population in 20 Senate districts.
Defendants' Ex. 12. Plaintiffs argue that in proportion to the
City's 1980 population, the voters of Chicago should control
or constitute a majority in 31 House districts and only 15.5
Senate districts. However, under the Commission Plan, Chicago
voters "control" 35 House districts and 17 Senate
districts.*fn21

Plaintiffs similarly observe that the number of districts
controlled by collar county voters has not increased between
1970 and 1980, despite the population shifts from Chicago and
Cook County to the collar counties evident in the 1980 census.
Under the 1971 plan there were six Senate districts (then
referred to as "Legislative" districts) entirely within the
collar counties and five that overlapped into adjacent
counties. Under the Commission plan, there are still six
Senate districts wholly within the collar counties, but the
number of overlap districts has increased to nine.*fn22

Compactness. The Rybicki plaintiffs allege that 15 House
districts and 2 Senate districts are not compact.*fn23 The
noncompactness of these districts is evident, according to
plaintiffs, both under a visual analysis and as demonstrated by
mathematical standards. In Schrage v. State Board of Elections,
88 Ill.2d 87, 58 Ill.Dec. 451, 430 N.E.2d 483 (1981), the
Illinois Supreme Court invalidated former Commission House
District 89, which extended 125 miles at its longest point and
six miles at its narrowest, a length to width ratio of roughly
21:1. By comparison, Commission Senate District 19, the most
egregious district on plaintiffs' list, extends 36 miles at its
longest point and is two miles wide at its narrowest, a ratio
of 18:1.*fn24

Defendants sought to minimize the significance of
plaintiffs' compactness complaints by introducing examples of
oddly shaped districts from the court-approved 1971
redistricting effort. See Defendants' Exs. 61 and 62. Moreover,
the Commission's expert witness, Mr. Brace, testified that the
irregular shapes appearing in the Commission Plan were
necessitated in some circumstances to comply with the low (1%)
population deviation standard employed as a goal by the
Commission. Mr. Brace also stated that the desire to achieve
some other redistricting goals, such as respect for the
integrity of political subdivisions, communities of interest or
natural boundaries contributed to the irregularly shaped
districts. Plaintiffs attempted to
rebut these arguments by presenting their own "Coalition Plan"
which, they alleged, contained more compact districts.*fn25
But this alternative map also indicates the difficulty of
achieving uniform compactness. The Coalition Map was drafted
utilizing a less stringent population deviation
standard;*fn26 nonetheless, as Defendants' Exhibit 62
demonstrates, even the Coalition Plan contains a number of
highly irregular, elongated districts.*fn27

Political Fairness. The Rybicki plaintiffs also assert that
the presence of noncompact districts is evidence of the
Commission's intent to preserve a disproportionate number of
Democratic incumbents. Moreover, plaintiffs allege that the
extensive use of "overlap" districts designed to maintain the
power of Chicago (and hence, the Democratic Party) by
fracturing suburban areas, demonstrates the political
unfairness of the Commission Plan. Defendants vigorously deny
that the Commission Plan is politically unfair. Evidence
submitted by the defendants indicated that historically,
Illinois has been a "swing state" which elects Democrats and
Republicans in equal numbers to legislative and executive
offices. See Defendants' Exs. 23 and 24. In this connection,
defendants analyzed the political effects of their map by
examining past voting patterns for each census tract in every
district.*fn28 On the basis of this analysis, defendants
concluded that the Commission Plan would produce in the House
39 "firm" and 5 "soft" Democratic districts; 41 "firm" and 10
"soft" Republican districts; and 23 "swing" districts. In the
Senate, it would produce 21 "firm" and no "soft" Democratic
districts; 25 "firm" and 3 "soft" Republican districts; and 10
"swing" districts. Defendants observed that this alignment
slightly favors the Republicans.*fn29

Fractured Counties. The Rybicki plaintiffs also introduced
evidence demonstrating that the Commission Plan
indiscriminately fractures political subdivisions.
Representative Lee Daniels of DuPage County testified at length
that fracturing can produce undesirable political consequences,
particularly when a legislator is charged with representing
areas that have divergent political interests. Representative
Daniels pointed out that, even though Cook County and the
collar counties have seemingly antagonistic interests on issues
of transportation, taxation and education, nine Senate
districts overlap between these two areas.

Focusing more closely on the Chicago metropolitan area, we
note that in the 1971 plan, eleven Senate districts were
entirely within Chicago while nine overlapped into Cook
County.*fn30 Two districts overlapped from Cook County into
the collar counties. See Defendants' Exs. 9, 10. Under the
Commission Plan, eight Senate districts are wholly within
Chicago, eleven overlap into Cook County and seven overlap from
Cook County into the collar region.*fn31

The alleged political result of overlapping districts in the
metropolitan Chicago area is that a disproportionate number of
seats are "controlled" by Chicago and Cook County voters.
Defendant Commission members admitted at trial and in their
depositions that they intended to achieve this result of
widening the influence of Chicago voters.*fn32 Defendants
suggest that, in the absence of overlapping districts in the
Chicago and Cook County area, a redistricting plan grossly
favors the Republican Party.

2. Crosby Plaintiffs

The Crosby plaintiffs introduced several types of evidence
attempting to establish that the Commission Plan was the
product of purposeful discrimination to dilute black voting
strength and to unconstitutionally gerrymander districts in
black population areas. Their proof may be categorized as
evidence of (1) retrogression; (2) "packing" and "fracturing"
of the black population; (3) movements of large racial
populations in certain areas to preserve the incumbencies of
white legislators; (4) "admissions" of certain Commission
members; and (5) prior instances of discrimination allegedly
practiced by the regular Democratic Party organization in
Chicago.

By contrast, white representation in districts where Chicago
voters constitute at least part of the population has not
diminished significantly. Under the 1971 district lines as
applied to the 1980 census figures for districts wholly or
partially located within Chicago, whites constitute a majority
in 14 of the 19 Senate districts*fn34 even though they
account for only 45.5% of the population in those
districts.*fn35 The Commission Plan, under the 1980 census
figures, results in whites being in the majority in 14 of
19*fn36 Senate districts wholly or partially located in
Chicago. Although the white population of the City of Chicago
has declined, the Commission Plan, which employs several more
overlap districts than the 1971 plan, actually increased to
51.1% the white population in these Chicago-area districts,
thus explaining, in part at least, why 14 of 19 districts are
still populated by a majority of whites.

Packing and Fracturing. Packing and fracturing are the terms
used by plaintiffs in this lawsuit to describe two somewhat
different means of reducing the voting strength of a
geographically unified minority group. Packing occurs when a
minority group is concentrated into one or more districts so
that it constitutes an overwhelming majority in those districts
(and part of its vote is "wasted"). Fracturing occurs when a
geographically unified minority group is unnecessarily split
among a number of districts.

All five of the majority black Senate districts located in
Chicago under the Commission Plan have black concentrations in
excess of 80% of the total district population.*fn37 The
black population is also highly concentrated in the 12 Chicago
House districts in which blacks constitute a majority although
black percentages in these districts are generally not as high
as in the majority black Senate districts.*fn38

Both fracturing and packing are allegedly evident in the
voting districts on the West Side. Of the 300,000 blacks who
reside on the West Side, approximately 160,000 reside in
Commission House Districts 17 and 18, both of which are over
80% black. The rest of the black population is distributed
among Commission House Districts 11, 19 and 20, which have
black populations of 48%, 72% and 18%, respectively.*fn39
Defendants, of course, presented various reasons not related
to packing and fracturing for the existence of district lines
tracing racial boundaries on the South and West Sides, which
will be discussed infra.

During the course of this litigation, the Crosby plaintiffs
presented several alternative plans that they claim would more
fairly and equitably promote the interests of black voters in
Chicago. The Coalition Plan, which was offered as a completely
packaged alternative to the Commission Plan, contains districts
which incorporate more white areas into black-controlled
districts, thereby enhancing black voting strength. By creating
districts which overlap from black areas into neighboring white
areas the Coalition Plan produces five Senate districts on the
South Side with black populations ranging from 70% to 85%.
(There are four majority black Senate districts on the South
Side under the Commission Plan.) The Coalition Plan would also
avoid alleged packing and fracturing of the black population on
Chicago's West Side, by creating two black Senate districts
(with black populations of 66% and 84%) and four black House
districts (with black populations of 65%, 67%, 72% and 96%).
(There is one black Senate district and three black House
districts in this area under the Commission Plan.)

After trial was completed, another plan, denominated the
"Crosby Plan," was presented to the court as an offer of
proof. This plan reconfigures most of the Commission Senate
and House districts located within Chicago and Cook County by
allegedly reducing the coincidence of racial and electoral
boundaries and increasing the number of districts in which
blacks constitute a majority of the population.

Movements of Racial Populations To Preserve White
Incumbencies. Plaintiffs presented evidence of racial
population shifts in several districts, allegedly motivated by
the desire to preserve the incumbencies of various white
legislators or potential white candidates on both the South and
West Sides. These districts included Commission Senate District
14, where incumbent Senator Jeremiah Joyce resides, Commission
Senate District 18, where incumbent Senator Glenn Dawson
resides, and various West Side districts, particularly
Commission Senate District 8, home of Senator Philip Rock and
Commission House District 15, which is part of Senate District
8. A detailed analysis of these population movements, which we
regard as very significant, is included in Section III infra.

Alleged Admissions of Defendants. The drafters of the
Commission Plan acknowledged that, at the time they drew the
Map, they were aware of the relationship between legislative
districts and racial demographics in the City of Chicago.
Throughout the line drawing process, the drafters possessed
color coded maps reflecting the location and the degree of
concentration of blacks and Hispanics in metropolitan Chicago.
Extensive population statistics reflecting the percentages of
minority groups as well as statistics showing their population
growth between 1970 and
1980 were also available to the Commission.

Representative Madigan who, together with Commissioner
Murphy, drew the Chicago portion of the plan, stated that he
studied the maps and that he was aware of the percentages of
blacks placed in each district.*fn40 Representative Madigan
and Commissioner Murphy also testified that racial factors,
including the existence of racial feeling antagonistic to
blacks in some South and Southwest Side white communities,
were taken into account in drawing the district boundaries.
See Tr. at 1432 (remarks of Rep. Madigan); 1838-39 (remarks of
Comm'r Murphy). Neither Madigan nor Murphy indicated, however,
that any district lines were drawn for the purpose of diluting
black voting strength.

History of Civil Rights Violations in Chicago. To strengthen
the inference of intentional discrimination against blacks, the
Crosby plaintiffs introduced evidence of past racial
discrimination by the City of Chicago and, allegedly, by the
City's regular Democratic organization. In particular,
plaintiffs pointed to several lawsuits involving the Chicago
Police*fn41 and Fire Departments,*fn42 the Chicago Housing
Authority,*fn43 and the Board of Education*fn44 in which the
city defendants were either found to have discriminated against
blacks or entered into consent decrees which recognized the
existence of racial bias within the agency. Plaintiffs noted
that the heads of all three city agencies are appointed by the
Mayor (inevitably a Democrat). Plaintiffs also introduced
evidence of the new Chicago ward map, which they asserted to be
biased, and which furnished a guide in some instances for the
challenged legislative redistricting.

Interests of Blacks and Hispanics. Defendants introduced
evidence indicating that the Democratic Party has strongly
espoused the cause of blacks in Illinois. They noted that the
Democratic Party has sponsored and passed civil rights
legislation, social welfare legislation and legislation
providing for bilingual education — all matters of ...

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